Allahabad High Court
Milap Singh vs State Of U.P. And Anr. on 18 February, 2000
Equivalent citations: 2000CRILJ3059
Author: S.K. Agarwal
Bench: S.K. Agarwal
ORDER S.K. Agarwal, J.
1. This revision has been preferred by the revisionist/applicant, Milap Singh, against an order refusing to extend him the benefit of the Juvenile Justice Act. The order by which this benefit was denied is dated 27-3-1998.
2. While admitting the revision, this Court has stayed further proceedings in Sessions Trial No. 251 if 1990 (State v. Ram Beti) pending in the Court of II Additional Sessions Judge, Mainpuri.
3. I have heard the revision. No serious arguments have been advanced, so far as merit is concerned. The only point raised before me seriously is that of availability of the benefit of Juvenile Justice Act to the applicant on the ground that at the time of occurrence he was under 15 years of age. In support of this plea that the applicant is a juvenile, the evidence on record is that of medical examination report which is Ext. C-1 proved by Dr. M.L. Verma, Chief Medical Officer. Mainpuri, dated 16-8-1997. According to the medical opinion of the above said doctor, the age of the applicant is more than 20 years on the date of his examination. He appeared as C.W. 1. The defence has filed a school...eaving certificate, which is Ext. Kha-1 and has examined a defence witness also. The date of birth of the applicant, as transcribed in the above said school leaving certificate, is 1-7-1975. Thus, on the date of occurrence, i.e. on 17-4-1990, the applicant was under 15 years of age. Even in his statement recorded on 16-2-1996, under Section 313, Cr.P.C. he gave out his age to be 20 years in the relevant column. The contention of the learned counsel is that he was, from all points of view, either 15 years or under 15 years of age at the time of occurrence. In these circumstances, he clearly is a juvenile and, therefore, his case should have been separated and he should have been tried by the Juvenile Court, in accordance with law.
4. Two applications were moved by the counsel, on behalf of the applicant, before the trial Court. The first one was moved on 15-11-1996 and the second one was moved on 14-5-1997, as no orders were passed on the first application by the Court till then. The argument advanced from the side of the prosecution was that this Ext. Kha-1 is a fabricated document, which is supported by D.W. 1, and, therefore, no reliance can be placed thereon. He further contended that in the report of C.W. 1 Dr. M.L. Verma, no exact or approximate age of the applicant is given. He had simply stated that the age of the applicant is more than 20 years. His cross-examination suggested that the age of the applicant may be 21 years at the most. His further contention is that this opinion about age, given by C.W. 1, is not supported by any medical authority. His last contention is that the plea of juvenile should have been taken at the earliest stage, i.e. at the stage of framing of charge and not at such a belated stage when the trial apparently was in the stage of arguments or defence evidence stage. Reliance has been placed by him in this connection on the case reported in 1997 34 All Cri C 581 : 1997 All LJ 1091).
5. So far as the contention that the evidence produced is fabricated, I am unable to subscribe to such a contention. There is nothing om record on the basis of which it can be inferred that Ext. Kha-1 as well as the evidence, of D. W. 1, supporting it, is fabricated and false. Further there is nothing on the record which may give any indication that the age of the applicant, on the date of occurrence, was above 16 years. The learned Addl. Sessions Judge was moved more by the fact that the applicant is the husband of the deceased lady, Smt. Uma Devi and the post-mortem examination report showed that the deceased was aged about 20 years and the plea of juvenile was taken at the first instance on 15-11-1996. In his opinion, this was highly belated.
6. There is no stage for taking a plea of juvenile. It is always preferred if this plea is taken at the outset, but if for some reason it has not come up at the outset then it cannot be discarded only on the ground that the plea has been raised at a belated stage and the age of the deceased wife cannot be a criterion for fixing the age of her husband, when specifically cross-examination of defence witness regarding the age of the accused is available. It revealed that the accused was younger in age then the deceased wife. This evidence is even corroborated by P.W. 2 Ram Dayal. The prosecution has not led any evidence whatsover to establish any fact contrary to the assertion of the defence. He has placed much stress upon the certificate of the doctor, which was issued on 14- 8-1997. The date of incident in this case is 17-4-1990. The date of birth of the applicant, as recorded in the school leaving certificate. Ext. Kha-1, is 1-7-1975. So, according to the learned Addl. Sessions Judge, the age of the applicant on the date of medical examination was 21 years and he had just entered 22nd year of his career. Nearly seven years and a quarter have elapsed in between the date of occurrence and the medical evidence. Taking that fact into consideration the age of the applicant, according to opinion of the Medical Officer, comes to above 14 years. The possibility that there is always a difference of 1-2 years in the Medical Officer's estimation and the actual age, the Court cannot deny this benefit to the applicant on this assumption that the age of the applicant being below 13 years is improbable. It is also not uncommon in the villages that the marriages of the younger boys are settled with the girls who are older by a few years to them.
7. As has already been stated that the benefit of either the Children Act or the Juvenile Justice Act cannot be denied to an accused only because he had made a delayed application for determination of his age. Courts cannot lose sight of the fact that the application was given during pendency of the trial. There are decisions of this Court as well as the Apex Court where such prayer has been entertained at still a belated stage. It is not always the duty of an accused. It is also the duty of a Court, if the accused appears to be a juvenile from his appearance to ascertain the fact. The Court should not lag behind in finding out his age by medical evidence and other evidence before proceeding against him for the offence for which he is charged. The Court is under an obligation in this regard. The Children Act as well as the Juvenile Justice Act are legislations enacted by States and the Parliament for the benefit of such delinquent juveniles.
8. In the case reported in 1984 SCC (Cri) 478 : (AIR 1984 SC 237) (Gopinath Ghosh v. State of West Bengal) the accused was tried for the offence of murder, but it had not questioned either by the appellant or by his counsel either before the trial Court or in appeal before the High Court, that the trial Court had no jurisdiction to hold the trial of the appellant. It was never contended before any of above Courts that he was a juvenile delinquent within the meaning of the West Bengal Children Act, 1959. It was for the first time raised before the Apex Court. The Apex Court has come to the conclusion that "However, in view of the underlying intendment and beneficial provisions of the Act read with Clause (f) of Aricle 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it." The Apex Court has come to the conclusion that on the date of occurrence the age of the appellant. Gopinath Ghosh, was between 16 & 17 years. Therefore, he was a juvenile delinquent and, therefore, his case could not have been committed to the Court of sessions and he could not have been sentenced in trial by the Sessions Court. Thus, any contrary finding returned on this issue by the learned Addl. Sessions Judge cannot be upheld in view of this decision of the Apex Court.
9. In Bhoop Ram v. State of U.P. 1989 SCC (Cri) 486 : (AIR 1989 SC 1329) the Apex Court has gone on to hold in paragraph No. 7 of this judgment that "There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 years of age on April 30, 1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in schools for securing benefits to the children in their future years." Thus, the Apex Court also appears to have come to the conclusion that the age recorded in the school leaving certificate should have been given preference to the report of the Medical Officer unless there is evidence to the contrary to the effect that such a certificate is either fabricated or forged or the date of birth is provenly understated.
10. According to Section 2(h) of the Juvenile Justice Act, 1966 "juvenile means a boy who has not attained the age of 16 years".
11. Section 24 of the Act bears a joint trial of a juvenile with any person, who is not a juvenile. Sub-section (2) of this section clearly says that if a juvenile has been charged and tried together with a non-juvenile, the Court taking cognizance of that offence shall direct separate trials of the juvenile and other persons.
12. Section 56 of the Act provides for even the benefit of those juveniles, who are already undergoing sentences passed against them before the enforcement of the beneficial provisions of this Act. Such juvenile convicts are to be kept in a special home or any other place or in a manner as the State Government thinks fit for the remainder period of the sentence.
13. Thus, the intention of the legislature is explicit and clear. It wants business and no harassment or punishment to delinquent juvenile. The purpose behind this enactment is reformative to afford a juvenile to join the main stream of lfe as a good and decent citizen.
14. That is why the legislature has thought it proper to introduce Section 25 in this Act. Section 25 removes all disqualifications that may be attachable to any conviction of a juvenile.
15. Section 21 deals with orders that can be passed against any delinquent juvenile. It includes within its fold his release after advice or admonition, his release on probation, of good conduct and placement under the care of any institution for his good behaviour and well-being or direct him to remain in any special home.
16. It is apparent that this Act does not envisage incarceration of a juvenile nor wants to shut on him the doors or a decent and disciplined civilised life. On the contrary it opens for him such a vista by providing him an occasion to amend and regulate his delinquency. The Courts are not to thwart such a course for him by either caprice, bias or any impractical or unimaginable reason.
17. As already observed earlier, the learned Addl. Sessions Judge has recorded his opinion without any basis. His observation that the documents are forged or fabricated cannot be accepted on its face value in the absence of any evidence to the contrary on record. The school leaving certificate and the age given therein is corroborated by the testimony of D.W. 1 as well as the medical evidence. I do not find any valid reason for accepting the findings of the learned Addl. Sessions Judge.
18. No doubt it has to exercise diligence and due caution and care in granting benefit of these provisions to any delinquent juvenile. The nature of the offence and character of beneficiary delinquent has to be given due weightage but the benefit cannot be denied lightly. This is what the scheme of the 'Act' lays down.
19. Since the offence where this benefit is sought is of bride burning, I find it safe to direct the trial Court to re-examine the authenticity of the school leaving certificate by calling the original records, such as scholars register, the original form of admission, if it is still available and to ascertain the age, examine the applicant's father, mother or any other close relation, who can throw any light on the point of age of the applicant, before allowing the applicant to reap the fruits of the above said legislation, Juvenile Justice Act, 1986.
20. In view of the abovesaid discussions, this revision is allowed and the order of the learned addl. Sessions Judge dated 27-3-1998 is hereby set aside. It is remanded back. The Addl. Sessions Judge concerned is directed to act in accordance with law in view of the observations made in this order after reassessing the authenticity of date of birth of the applicant and also the genuineness of the school leaving certificate.